Environment Bill

Written evidence submitted by Greener UK and Wildlife and Countryside Link on the Environment Bill (EB10)


I1 Greener UK is a coalition of 13 major environmental organisations, which came together to ensure that environmental protections are maintained and enhanced during the Brexit process, particularly through ambitious domestic legislation. Now that we have left the EU, we are urging the UK and devolved governments to build on our high environmental standards and protections.

I2 Wildlife and Countryside Link is the largest environment and wildlife coalition in England, bringing together 56 organisations to use their strong joint voice for the protection of nature.

I3 The Environment Bill is a vital piece of legislation. There are many welcome measures in the bill. There are others where technical improvements will help to set it on the right track, and others where significant amendment will be necessary. But, considered as a whole, the bill does not yet achieve what has been promised: gold standard legislation, showing global leadership for responding to the environmental crisis, and a world-leading watchdog.

I4 For further details, please see our detailed second reading briefing on the bill.

1. Part 1 – environmental governance

Environmental targets (Clauses 1 to 6)

1.1 The inclusion of a target setting framework is a welcome part of the bill. To ensure that enforceable and ambitious targets are set, the framework in the bill must be improved as follows:

· An objective should be added to the bill to guide both the content and the scope of the targets so that the targets aim to achieve an environment that is recovering, healthy, diverse and resilient for the benefit of people and wildlife

· Targets must be based on independent, expert, science led advice to ensure that they are robust and fit for purpose. The government should be required to obtain, with a strong expectation to follow, the advice of an independent, well-resourced, expert body and to undertake public consultation. This would follow a similar ‘comply or explain’ model to that in the Climate Change Act

· The time frame for the targets and their achievement needs to be improved. While we welcome the focus on long term improvement that targets of at least 15 years will bring, targets should be set as soon as possible and the bill should also allow for shorter term targets to be set where appropriate

· The significant improvement test must be clarified and strengthened. The term "significant environmental improvement" is not defined. The test should be amended to specify that significant improvement should be achieved for the environment as a whole, as well as in priority areas, on land and at sea. It should apply to both the setting and reviewing of targets

· The bill must also put in place measures to make sure the targets are actually met. The bill should require successive governments to bring forward specific time-bound measures, as part of the relevant Environmental Improvement Plan, to ensure policies are in place to deliver the targets and progress remains on track. To ensure action across government, other public bodies must also be placed under a duty to contribute to the achievement of the targets, and interim targets should be made legally binding

1.2 As marine is not explicitly included as a matter for target setting in the bill, the government is not required to set targets for the recovery of the marine environment. This should be resolved.

Environmental principles (Clauses 16 to 18)

1.3 Despite listing the principles on its face, the bill constitutes a significant weakening of the current legal effect of the principles because there is no duty on government ministers to apply the principles, merely to have "due regard" to an, as yet, unpublished policy statement.

1.4 The bill should therefore be amended to:

· Require public authorities to apply the environmental principles and not merely have "due regard" to a policy statement

· Remove the proportionality limitation and the exceptions for armed forces, defence policy, tax, spending and resources from the requirement to have due regard to the policy statement on environmental principles

· Require the Policy Statement to be approved through a resolution in parliament

Environmental protection: statements and reports (Clauses 19 and 20)

1.5 Without a binding commitment to maintaining standards, environmental law is very likely to come under sustained deregulatory pressure. The bill must therefore be amended to include a binding commitment so that standards cannot be weakened or watered down in the future.

1.6 In addition, Clause 19 should be modelled more closely on the Human Rights Act on which it appears to be loosely based. That legislation involves a more rigorous process in which the Joint Committee on Human Rights scrutinises every government bill for its compatibility with human rights. A new Joint Committee on Environmental Standards could be established to undertake a similar role; equally, it could be undertaken by one of the existing environmental select committees.

1.7 Clause 19 should be amended to require an environmental protection statement:

· For all bills before parliament as well as subordinate legislation

· To be oral rather than written statements

1.8 Clause 20 requires the Secretary of State to report biennially to parliament on developments in international environmental protection legislation which appear to the Secretary of State to be significant.

1.9 Clause 20 should be amended to require:

· The government to consult on what counts as significant for the purposes of this clause

· The report to include an independent assessment and the government’s response to it

· An oral statement to accompany the written report

The independence of the Office for Environmental Protection (Clauses 21 to 24, Schedule 1)

1.10 The OEP will only be effective if it is sufficiently independent from government. The government has accepted this and there has been strong support in parliament for the principle of the OEP’s independence. While there have been some improvements, further changes are needed to ensure enduring independence for the OEP.

1.11 Both the Environmental Audit Committee and the EFRA Committee have called for a greater role for parliament in the appointments process. It is disappointing, therefore, that the government has failed to improve the appointments process and appears to be relying on pre-appointment hearings to provide independence, which they do not. This leaves the OEP with weaker arrangements on appointments than any other comparable oversight body.

1.12 The government has agreed to provide the OEP with a five-year indicative budget which is formally ring fenced by HM Treasury within any given Spending Review period. This is welcome but, public and parliamentary pressure aside, there is nothing to stop a future government deciding not

to renew this commitment. It should, therefore, be enshrined in the legislation.

1.13 The OEP should be able to present its own Estimate to parliament. This would enable the OEP, rather than the Secretary of State, to determine what funding is needed to deliver its functions.

1.14 The bill should therefore be amended to:

· Require the OEP Chair to be appointed by a combination of parliament and government

· Require the OEP to be given a five-year indicative budget, and allow it to request in-budget increases

· Allow the OEP to present its own Estimate to parliament

· Strengthen the duty on the Secretary of State to protect the OEP’s independence

· Require the maintenance of a log of substantive contact with government

Interim chief executive (Schedule 1)

1.15 We note that Paragraph 4 of Schedule 1 gives the Secretary of State the power to appoint an interim chief executive for the OEP. We recognise that this may be necessary to facilitate the timely set-up of the OEP. However, we are concerned about the broadly cast nature of the power, which could allow ministers to effectively control the development of the OEP at a crucial, formative time.

1.16 Paragraph 4(3) which amounts to a power of direction over the OEP should be removed and there should be greater oversight of the appointment of any interim chief executive by the Chair.

The OEP’s enforcement function (Clauses 28 to 38)

1.17 The OEP is not given a sufficiently wide remit to ensure adequate oversight of environmental law. It should have broad scope to act where it thinks it is most needed and be enabled to take a wide-ranging and strategic approach to environmental oversight and the enforcement.

1.18 The OEP can conduct investigations on its own initiative. However, the significance of the investigations is undermined by the narrowness of the OEP’s powers to issue notices following on from these investigations. Neither "information notices" nor "decision notices" are binding, and it is not clear that these will be an effective way to remedy failures to comply with environmental law.

1.19 The OEP must be empowered to conduct broader inquiries into systemic issues and make recommendations or issue guidance off the back of them.

Environmental review (Clause 35)

1.20 We welcome the government’s attempt to design a bespoke enforcement process. Environmental review could represent an improved compliance mechanism on environmental law. Unfortunately, the proposed process is unsatisfactory and is, in essence, judicial review in disguise and the Upper Tribunal is severely limited in what remedies it can grant. The Upper Tribunal must be able to consider technical facts and issues, with experts who are able to thoroughly review the substantive matter at hand.

1.21 The bill should therefore be amended to:

· Allow the Upper Tribunal to grant any remedy it thinks fit

· Require a public authority to remedy a failure to comply with environmental law

· Ensure that OEP notices will be treated as authoritative, so that they play a meaningful role in any subsequent enforcement action

· Provide that the Tribunal may review findings of fact during a review

· Allow any person with "sufficient interest" to apply for an environmental review where the OEP decides not to

· Allow relevant people to intervene in environmental reviews and any other person to apply to intervene in environmental reviews

· Require the Secretary of State to consider what steps may be taken to improve compliance with the Aarhus Convention and, if appropriate, to take those steps

· Require the OEP to oversee implementation of the Aarhus Convention

The OEP and climate change

1.22 We support climate change being within the remit of the OEP’s enforcement functions. We agree that the OEP should work closely with the Committee on Climate Change to avoid overlap and duplication and ensure a joined-up approach to scrutinising and enforcing climate law.

Restrictions on disclosure (Clause 40)

1.23 The OEP and public authorities are prevented from disclosing certain materials including information and decision notices, and correspondence relating to such notices. It is unclear why these provisions are needed. A better approach – which would be more likely to comply with the access to information requirements in the Aarhus Convention – would be to remove Clause 39 or flip it around so that disclosure is required apart from in certain (exhaustive, specified) circumstances.

Meaning of natural environment, environmental protection and environmental law (Clauses 41 to 43)

1.24 Clause 43 defines environmental law as any legislative provision that is "mainly concerned" with environmental protection. This is too high a bar. "Mainly" should be deleted.

1.25 "Environmental protection" must be more broadly defined in Clause 42. Key areas of law with potential environmental impacts may fall outside the scope including, for instance, many pieces of planning law. In addition, the exclusions relating to the disclosure of, and access to, environmental information and taxation, spending and resource allocation within government should be removed.

1.26 Clause 41 should be amended to make it explicitly clear that the meaning of the natural environment includes the marine environment.

The UK’s global environmental footprint

1.27 The bill does not include any focus on the UK’s global footprint and its reduction. While this is implicit, via the inclusion of Environmental Improvement Plans (of which the 25 Year Environment Plan is the first and includes a chapter on protecting and improving our global environment), this international component must be explicitly recognised in the bill, including a target for reducing key supply chain impacts. The government should also establish a mandatory due diligence mechanism to reduce the UK’s global footprint.

2. Part 2 – environmental governance in Northern Ireland (Clauses 45 and 46, Schedules 2 and 3)

2.1 We welcome the extension of provisions in the bill on Environmental Improvement Plans,

environmental principles and the OEP to cover Northern Ireland.

2.2 Clauses 1–6 on environmental targets should also apply to Northern Ireland. The targets are inextricably linked to Environmental Improvement Plans and without these, the governance system in Northern Ireland will be incomplete and less effective.

2.3 The government should confirm that the work to establish the OEP takes full account of the resourcing, staffing and expertise needed for the body to operate effectively in Northern Ireland. The OEP must be operational by 1 January 2021 to avoid a gap in environmental governance.

3. Part 3 – waste and resource efficiency (Clauses 47 to 68)

3.1 Overall, the measures in the bill are too focused on ‘end of life’ solutions to waste and recycling. Much more emphasis is needed on reduction and design for resource efficiency, including through reuse, at the design stage.

3.2 The government should confirm that it will seek to introduce legally binding targets on waste minimisation through the power in Clause 1, including but not limited to plastics.

Producer responsibility (Clauses 47 to 48 and Schedules 4 and 5)

3.3 Paragraphs 1(2)(a) and (b) of Schedule 4 indicate that regulations can be made to promote waste minimisation, reduction, reuse, redistribution, recovery or recycling of products or materials. This is welcome but undermined by the focus of Schedule 5 on disposal costs. The schedule should be amended to take a more holistic approach.

Charges for single use plastic items (Clause 52 and Schedule 9)

3.4 The intended charge for single use plastics is a missed opportunity and could result in unintended consequences. It would be far better to tackle the single use culture in general, rather than just shifting the environmental burden away from plastic to other materials. This part of the bill must be amended to extend charges to all single use materials.

Deposit schemes (Clause 51 and Schedule 8)

3.5 The government should clarify that it will introduce an ‘all-in’ deposit return scheme (DRS) as soon as possible, and that the DRS could be extended to other packaging formats in the future.

Resource efficiency (Clauses 49 and 50, Schedule 6 and 7)

3.6 The bill grants a general power to the relevant national authority to set product resource efficiency requirements. Schedule 7 excludes energy related products from this power. We would welcome clarity on the legal position as uncertainty has arisen on whether the Secretary of State has the necessary powers to set resource efficiency standards for energy related products.

Transfrontier shipments of waste (Clause 59)

3.7 We welcome the government’s intention to "stop the export of waste, including polluting plastic waste, to developing countries".

3.8 We call on the government to:

· Commit adequate resourcing of regulatory bodies and ensure the UK has the right infrastructure to ensure illegal and contaminated containers do not leave our shores

· Provide assurances that the ban will not result in more materials to be sent to landfill or incineration in the UK

4. Part 4 – air quality (Clauses 2, 69 to 74)

4.1 It is positive that the bill recognises the need for a new binding target for fine particulate matter (PM2.5) pollution. A government that is serious about protecting people’s health must make a legally binding commitment to meet World Health Organization guideline levels of PM2.5 by 2030 at the very latest on the face of the bill.

5. Part 5 – water (Clauses 75 to 89)

5.1 Clause 81 is a wide ranging power to amend the regulations that implement the Water Framework Directive. These include vital rules about how water quality is measured and the different chemicals and pollutants that must be considered. Clause 81 must be deleted or amended to ensure that targets and standards cannot be weakened, and that the means of measurement adjusted without thorough public consultation, scientific advice and parliamentary scrutiny of an affirmative instrument. A sensible precaution would be to amend the clause to ensure that new chemical pollutants can be added and targets strengthened, but chemicals cannot be removed or targets weakened.

5.2 The bill must tackle water consumption and must lead to a target for rapid and sustainable reduction in water consumption, both household and non-household.

5.3 We seek confirmation that clauses 49 and 50 provide the enabling legislation for the potential introduction of a UK-wide mandatory water efficiency labelling scheme linked to minimum standards.

5.4 Clauses on Land Drainage powers must be amended to ensure widespread expansion of Internal Drainage Boards (IDBs) does not take place without the appropriate governance, including an explicit duty for IDBs to exercise their functions in a manner that contributes to the achievement of environmental improvement.

5.5 Clause 80 is a welcome provision to improve water abstraction but delays action until 2028. The time frame for action must be reduced to address urgent issues such as pressure on our globally important chalk streams.

6. Part 6 – nature and biodiversity (Clauses 90 to 101)

6.1 The decisions of public authorities like Local Authorities are the front line in the defence of our natural world. Despite some good practice, decisions on planning and development continue to harm nature. Currently, spending on environmental protection is underfunded and poorly targeted. Expertise at the local level is lacking, with very few ecologists or environmental strategic planners available to inform decisions. Environmental considerations and responsibilities are often neglected or tacked on at the end of a decision-making process. This neglect is contributing to the ongoing decline of nature.

6.2 The nature chapter attempts to fix these problems by creating new responsibilities for developers to more than compensate for harm to habitats, by reinforcing public authority conservation duties and by creating a new level of environmental strategic planning to improve decision-making.

6.3 These clauses have the potential to halt and reverse declines in nature, but at the moment the associated duties are too weak to guarantee their effectiveness. Because new duties are not properly linked with planning and spending, there is a risk that environmental concerns continue to be a separate afterthought. By strengthening the duties, the bill can improve value for money, maximise environmental opportunities and create a better environment for communities.

Biodiversity gain (Clauses 90 to 92 and Schedule 14)

6.4 Done well, biodiversity gain could help contribute to the restoration of biodiversity and deliver the ambitions of the 25 Year Environment Plan. We are concerned that newly created habitat, as part of developers’ biodiversity gain requirements, could be destroyed after 30 years and key types of development are currently out of scope. The level of gain must be more ambitious, with stronger assurances that existing protections cannot be undermined or combined with biodiversity gain.

6.5 The bill should therefore be amended to ensure that:

· Biodiversity gain habitats must be secured and maintained in perpetuity

· Nationally Significant Infrastructure Projects and other large scale infrastructure projects should be included in biodiversity gain

· Future regulations must be brought to exclude irreplaceable habitats like ancient woodland from the net gain regime

· The level of biodiversity gain should be more ambitious, especially where local authorities aspire to go higher than ten per cent gain

Duty to conserve and enhance biodiversity (Clauses 93 and 94)

6.6 The current duty on public bodies to have regard to the need to conserve biodiversity is weak and ineffective. The bill proposes some improvements to this duty but needs to go further and public authorities must be properly resourced if this work is to be effective:

· The new duty should be extended beyond plan and policy-making and cover the exercise of all public bodies’ functions

· Action to further biodiversity conservation should be required by all public authorities

· The duty should apply to the private sector as well as public bodies

· Clause 94(8) should also require the audit of biodiversity reports by the OEP

Local Nature Recovery Strategies (Clauses, 93(5), 95 to 99)

6.7 Local Nature Recovery Strategies (LNRSs) could enable a wide range of organisations to contribute to the measures needed to address the biodiversity crisis and deliver the ambitions of the 25 Year Environment Plan, in particular by supporting the creation of a Nature Recovery Network.

6.8 They are intended to provide a framework for targeting action to improve the environment, combining local know-how with national priorities to ensure that wildlife habitat is bigger, better and more joined up. The current proposals, however, could increase the burdens on local authorities to produce plans, without delivering real gains for the environment because the duty to refer to the strategies in decision-making and the provisions for linking up local LNRSs to a coherent national Nature Recovery Network are too weak. The government should confirm that net gain and Environmental Land Management payments will be targeted using LNRSs.

6.9 The bill should be amended to:

· Include a requirement for the Secretary of State to produce a Nature Recovery Network opportunity strategy to inform its development

· Clarify that Local Wildlife Sites will be included in the habitat map

· Strengthen the duty to be a much stronger requirement to take the strategies into account in the exercise of public functions, including in the statutory planning system and in spending decisions

· Include explicit provision that Local Plans should incorporate the conclusions of Local Nature Recovery Strategies

Tree felling and planting (Clauses 100 and 101)

6.10 We note that the bill does not include a requirement for the government to produce a national tree strategy for England, as is the case in Scotland. Committing to this would send a positive signal on the importance the government attaches to trees and woodlands.

7. Part 7 – conservation covenants (Clauses 102 to 124 and Schedule 16)

7.1 The bill introduces a system of conservation covenants, whereby "responsible bodies" approved by the Secretary of State can enter into private arrangements with landowners. We have concerns that, in its current form, covenants would not act as an effective legal mechanism to secure sites in perpetuity.

7.2 Schedule 16 enables the Upper Tribunal to take account of whether the obligation serves ‘the public good’ when considering whether to discharge or modify a conservation covenant. This term should be better defined, to avoid covenants being too easily discharged or modified.

8. Part 8 – amendment of REACH legislation and commencement

REACH (Clause 125 and Schedule 19)

8.1 The bill gives the Secretary of State the power to amend REACH legislation including the main text of the UK REACH law, although it also lists a number of protected articles which cannot be modified.

8.2 We are concerned about granting the Secretary of State such a sweeping power to amend the main UK REACH text, as this could be used to further reduce the level of protection for the public and the environment from hazardous chemicals. In addition, the framework set out by UK REACH law does not provide the same level of protection of the environment and human health as at present; this would best be achieved by remaining in REACH and the European Chemicals Agency.

8.3 We propose that the bill is amended as follows:

· Articles 33-35 on information in the supply chain and a right to know for consumers should be added to the list of protected articles

· In considering consistency with Article 1 of the REACH Regulation ministers must pay specific attention to the precautionary principle

· To improve transparency, ministers should be required to publish a report about the consultation process under paragraph 5 of Schedule 19

Commencement (Clause 131)

8.4 The majority of provisions, including those in Parts 1 and 2 on environmental governance, will come into force on "such day as the Secretary of State may by regulations appoint", meaning the timescale for implementation is unclear.

8.5 The bill should therefore be amended to clarify that Parts 1 and 2, especially the clauses on the OEP, should either come into force on the day of Royal Assent or within a two-month time limit. This is to ensure that the OEP is set up by 1 January 2021 to avoid a gap in environmental governance.

10 March 2020


Prepared 12th March 2020